Munro v. Privratsky

• Decision Date: 12 July 1973
• Docket Number: No. 8888,8888
• Citation: 209 N.W.2d 745
• Parties: Philip D. MUNRO, Plaintiff and Appellee, v. Lewis PRIVRATSKY, Defendant and Appellant, and Larry J. Privratsky, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 745

209 N.W.2d 745

69 A.L.R.3d 87

Philip D. MUNRO, Plaintiff and Appellee, v. Lewis PRIVRATSKY, Defendant and Appellant, and Larry J Privratsky, Defendant.

Civ. No. 8888.

Supreme Court of North Dakota.

July 12, 1973.

Rehearing Denied Aug. 10, 1973.

Syllabus by the Court

1. It is not error to refuse to give requested instructions when the instructions given, considered together, correctly advise the jury of the law applicable to the case.

2. The driver of a motor vehicle having the right of way at an intersection ordinarily has the right to assume that the driver of a less-favored vehicle, also approaching the intersection, will yield the right of way and exercise the ordinary care required of him, and the driver of the favored vehicle cannot be charged with contributory negligence because he relied on that assumption, unless the circumstances are such that a reasonable person would conclude that the driver of the less-favored vehicle intended to disregard the law in a manner likely to create a hazardous situation.

3. Error cannot be based on refusal to give requested instructions to the jury which are not warranted by the evidence.

4. The enactment of the Uniform Business Records as Evidence Act was to enlarge the exception to the hearsay evidence rule and the Act should be liberally construed, but the ruling of the trial court on the admission or exclusion of records under the statute will not be reversed in the absence of a manifest abuse of discretion.

5. It was not an abuse of discretion for the trial court to refuse to receive in evidence, under the Uniform Business Records as Evidence Act, the written medical report of an examining physician which had been forwarded to the treating physician and kept by him as a part of his records, over the objection that there was no opportunity for cross-examination of the examining physician.

6. It was not error to refuse to receive in evidence the medical report of another physician in possession of the defendant's medical witness where the testimony of the defendant's medical witness did not indicate that his opinions and diagnosis were based on such report.

7. An error without prejudice is not grounds for reversal.

8. It was proper to permit an automobile owner to introduce evidence of the immediately before and after market value of his vehicle involved in an accident where the record shows it was impracticable to repair the damage as the cost would exceed the amount by which the market value had been diminished. Section 32--03--09.1, NDCC.

9. It was not error to admit, over objection for lack of foundation, oral testimony as to cost estimates for repair received from garages in the absence of proof that better evidence was in existence.

10. It was proper to permit the plaintiff to testify on redirect examination as to the surrounding circumstances pertaining to his execution of an application for health insurance, which was introduced in evidence by the defendant on cross-examination of the plaintiff.

11. Testimony that it would be 'hard' for a medical witness to give an opinion is not cause to sustain an objection on that ground or that the answer, if permitted, would not meet the quantum of proof necessary.

12. An appellant will not be heard to complain that the trial court erred when it instructed on the right to recover for diminution of earning power in the future when the verdict rendered clearly shows no award was made for future loss of earnings.

13. A motion for new trial based on the insufficiency of the evidence is addressed to the sound judicial discretion of the trial court and its decision thereon will not be disturbed on appeal unless an abuse of discretion clearly appears.

14. On appeal from a judgment in an action tried to a jury the appellate court must consider the evidence in the light most favorable to the verdict. In jury cases it is only when the evidence is such that reasonable men can draw but one conclusion therefrom that the questions of negligence, proximate cause and contributory negligence become questions of law for the court.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendant and appellant.

Freed, Dynes & Malloy, Dickinson, for plaintiff and appellee.

TEIGEN, Judge.

The defendant Lewis Privratsky (hereinafter Privratsky) has taken separate appeals from a judgment and a post-judgment order denying a motion for judgment notwithstanding the verdict or in the alternative for a new trial.

The defendant Larry J. Privratsky was dismissed from the action by the court at the close of the evidence and no appeal has been taken from that decision.

By stipulation of the parties both appeals were argued and briefed together. We will decide them together in this opinion.

The plaintiff (hereinafter Munro) obtained a judgment on a jury verdict against the defendant Privratsky for personal injuries and property damage resulting from an open intersectional automobile collision.

Errors are specified as follows:

1. The trial court erred in refusing to give four requested instructions pertaining to the duty of a driver having directional right of way;

2. The court erred in refusing to receive in evidence a written medical report in the possession of Munro's treating physician, which was received by him from an orthopedic surgeon, after referral, and was kept as a part of his patient's records;

3. The court erred in various evidentiary rulings, the cumulative effect of which was prejudicial error;

4. The court's instructions on loss of earning capacity were erroneous;

5. The court erred in denying the motion for judgment notwithstanding the verdict as Munro was contributorily negligent as a matter of law.

This action arose out of a collision of motor vehicles operated by the respective parties. The collision occurred at an open, uncontrolled intersection in Hettinger about noon on February 3, 1970. Munro was driving his 1959 Chevrolet pickup in a northerly direction and Privratsky was driving his brother's 1965 Chevrolet on an intersecting street in an easterly direction. Munro's vehicle was traveling slightly downhill and Privratsky's vehicle was traveling slightly uphill. The streets were covered with snow which was compacted and slippery. Munro entered the intersection first and had the statutory right of way, being to Privratsky's right. This statutory right of way is not in dispute. There were no other eyewitnesses to the collision. Both parties agree that the impact occurred in the northeast quardrant of the intersection and that the Munro vehicle was struck on its left side behind the door and in front of the rear fender by the right front corner or fender of the Privratsky automobile. No claim is made that Privratsky was not negligent nor that his negligence was not a proximate cause of the collision. This suit is defended on the theory that Munro was contributorily negligent and that his contributory negligence was also a proximate cause of the collision. This claim is made on the basis that Munro, before entering the intersection, had slowed his vehicle to a speed of five to ten miles per hour, had looked to the left and saw the Privratsky automobile approaching the intersection, and then looked to his right. He continued to slow his vehicle before entering the intersection. He slowed to five or six miles per hour and looked a second time to the left. Again he saw the Privratsky automobile approaching the intersection but he failed to stop although he Probably could have done so because cause his pickup was equipped with snowgrip tires and carried tools used by him in his employment as a plumber which, it is argued, added weight and improved his traction. Munro testified that he did not know how fast Privratsky was traveling. He could not state with definiteness how far from the intersection Privratsky's automobile was when he saw it except to state that it was 'down the block a ways' and, on the second occasion when he saw it, it was 'up the block a little farther.'

Upon examination of the evidence we find that there is no evidence that Munro could have stopped his pickup before entering the intersection. The evidence is to the effect that he could have tried to stop but he was traveling downhill and may have slid into the intersection and blocked Privratsky's lane of traffic.

Munro testified that the second time he looked and saw the Privratsky automobile he decided that 'I had plenty of time to proceed on across the intersection', and he accelerated to an estimated ten to twelve miles per hour. After he had crossed the southeast quardrant of the intersection and was no longer looking to his left but was looking forward and had arrived well into and almost through the northeast quardrant of the intersection, his pickup was struck by the Privratsky automobile.

Privratsky testified that he was traveling from ten to fifteen miles per hour as he approached the intersection, and that he was traveling on the right-hand side of the street during his approach to the intersection. Upon seeing the Munro pickup enter the intersection he applied his brakes which caused his automobile to skid toward the left and, as a result, he collided with the Munro pickup in the northeast quadrant of the intersection. Privratsky agrees that the right front corner or fender of his automobile struck the Munro pickup at a point behind the door and ahead of the rear fender. He contends that at the time of the collision his car was 'straddling' the east-west center line of the street upon which he was traveling, but agrees that the collision occurred in the northeast quadrant of the intersection and that his car struck the Munro pickup with its right front corner. Therefore it is clear that the meaning of the term 'straddling', which he was not asked to explain, constituted a straddling whereby two front wheels were on the north side of the east-west center line and the two back wheels were on the south side...